In this edition
From the President 2 The Editor 3 The Chief Magistrate 4 Intemperate Remarks, Magistrate Mossop 5 Pleading and Case Mangement 8 Your New Bar Council 2012/13 11 From the DPP 12 2012 Bench and Bar Dinner Photos 13 Members Lunch with Dan Mori 15 Case Review 16 From the Law Society’s President 21
Bar Bulletin November 2012 The Australian Capital Territory Bar Association FROM THE PRESIDENT GreGory Stretton SC
ACT Emergency Legal Aid Plan
On 13 September, I attended coronial inquiry, etc, yet, some were unable to access the launch of the ACT Emergency Legal Aid such assistance which meant additional trauma and Help Plan. !e Plan has been developed by the uncertainty in their moment of need. ACT Legal Assistance Forum (and comprising representatives of legal assistance providers in the !e Plan provides for volunteer legal practitioners ACT including the ACT Law Society) to provide to be available to provide legal advice in the essential legal assistance in the a"ermath of a a"ermath of a disaster. !e establishment of the signi#cant emergency event (disaster). ACT Emergency Legal Help is to be supported and commended. !e ACT Law Society will maintain a Following the ACT Bush#res in 2001, Canberra list of names and contact details of volunteers who residents needed urgent advice in relation to may be able to provide emergency legal services property insurance, loss of legal documents, following a disaster.
Reserved Judgments
!e delays in delivering reserved judgments in the reserved decisions, it is an area where signi#cant ACT Courts continues to be a primary ongoing improvement is necessary in the interest of justice. concern of members. While the delays relate to !e delays were raised by me at my #rst meeting some judicial o$cers only, the e%ect of the delay with the Judges as President and I will continue to on litigants and their legal representatives should monitor and apply such pressure as I can to improve not be underestimated. Whilst the latest statistics the situation. indicate a decrease in the time taken to deliver
Docket System in the Supreme Court
On 2 October, together with Ms Noor Blumer and time, it is hoped to have documentation ready Mr Richard Faulks met with Penfold J to discuss the in guiding practitioners on the questions they new Docket System. !ere have been acknowledged should be prepared to answer at appearances and teething problems with the system which hopefully appropriate orders and directions. Any input from will be recti#ed sooner rather than later. A follow members on the operation of the system would be up meeting is scheduled for 11 December by which welcome. Docks in the ACT Magistrates Court
On 16 October, Ken Archer of Council and the design of docks in the Court. !e Chief Magistrate CEO attended a meeting with the Chief Magistrate, has taken all of the issues raised at the meeting Professor David Tate of the University of Western and is currently considering all of the options Sydney and other stakeholders. A number of ideas available. and options were discussed around the concept and
Website
One of my priorities as President will be to update our website. I intend seeking support, both in principle and #scal at the next Bar Council meeting.
~ 2 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association FROM THE EDITOR
!ere are many important issues for all of us in the immediate future in the ACT. !e Attorney Simon Corbell is providing that if re-elected, he will introduce new legislation on proceeds of crime and privacy.
he proceeds of crime leg- Would we all bene#t with and integrity. With no right Tisltion currently existing these issues being spelt out in to discovery, the timetable in Australia is a worry for litigation? - I think so. for litigation is dramatically lawyers. Not because there reduced as is the cost. is any sympathy for de#ning !e Chief Judge in Equity criminals for de#ning crim- of the Supreme Court of !ese matters are food for inals of the proceeds of their NSW, !e Hon Justice thought for the Australian crimes. Patricia Bergin, addressed Capital Territory. the profession in the Federal !e problem is the draconian Court on 9 October 2012. legislation which reserves the onus of proof and can lead to Her Honour gave a an unjust result. A further challenging and provocative informed comment will address. She stated she was undoubtedly be made when against the Docket System the Bill is produced. for court administration and favoured a central authority !e privacy matter will be, only controlling the lists. I am sure a popular Bill. Currently, there are two !e main reason put forward !e ACT Bar Association celebrated instances that was because individual 11th Floor, AMP Building,1 Hobart bring privacy into sharp judges approach their task Place, Canberra City, ACT, 2601, DX 5654 focus. !e #rst, is the di%erently with di%erent time Duchess of Cambridge having tables and degrees of success p + 61 2 6257 1437 | f + 61 2 6257 6090 topless/nude phtos published. in the administration of that !e other is the pursuit by timetable. !e Chief Judge actbar.com.au the so called orthodox media in Equity was also against Opinions are not the o"cial opinions of the four girls involved in judges becoming involved in of the ACT Bar Association unless a custody dispute. We have expressly stated. !e Association mediation which occurs in accepts no responsibility for the seen the ‘forced’ removal from some Australian jurisdictions. accuracy of any information contained Australia and the ‘forced’ in the Bar Bullein and readers should rely upon their own enquiries in reuni#cation with their Lastly, Her Honour favoured making decisions regarding their own interests. Italian father. abandoning the right to ‘Discovery’ saying that the Minds would undoubtedly profession should be relied di%er about the privacy issues upon to act with honesty in relation to both matters.
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 3 ~ FROM THE CHIEF MAGISTRATE Lorraine W aLker
and government along with fearless comment as required by the former.
It is also incumbent on the judiciary to be both responsive to and proactive in relation to proposed legal reform. Whilst this must et again at the eleventh hour I am putting be politically impartial, and appropriately Y #nger to keyboard to report the latest communicated, honest and open relations from the ACT Magistrates Court to readers of between all aspects of the ACT legal the ACT Bar Bulletin. community will serve to provide a better legal system for the protection of Canberra’s !e last thing I heard on the radio as I arrived citizenry. to work this morning was the notion that our single Greens elected representative, Mr Shane I look forward to working with the new Rattenbury, should be considered for the role government, and the Bar Association and Law of Attorney-General. Whether that transpires, Society, to that end. or whether Mr Simon Corbell resumes the role, or whether it falls to another, it is likely that On a more prosaic level, I can advise of a our next Attorney-General will not be a legally number of matters. quali#ed person. !is fact brings both bene#ts and challenges. A further consultative meeting recently took I sat at a Bar conference a number of years ago place in relation to proposed dock and court with Justice Sully made the acute observation architecture arrangements in the Magistrates that “many lawyers sharpen their minds by Court. It was a fruitful discussion and a #nal narrowing them”. It is a phrase which has decision is expected before the end of the year. remained with me. !e appointment of a A research project is soon to get underway non-lawyer as Attorney-General means that around the functioning of the Forensic Medical certain knowledge, assumed amongst legal Centre at Phillip, which will aim to identify practitioners, may not be as ingrained in the best practice in relation to pathology services thinking of our #rst law o$cer. !is may provided at the Centre. In the same vein, I am require communication and education. It also in discussion with Donatelife with a view to means that certain assumptions ingrained in streamlining processes for organ donation in the thinking of lawyers, may be challenged. coronial matters. !is may require a preparedness in lawyers to re&ect upon and reassess their own Finally, Magistrate Mossop has agreed to assumptions. conduct a call-over of a number of civil matters referred to the Magistrates Court by Acting What is clear is that the role played by the Justice Sidis last week. !is will take place on Bar Association (along with the Law Society) 14 November. Parties can expect a thorough remains essential in the airing and testing and proactive approach by His Honour. He of the approach of the government of the has agreed to wear his Aon t-shirt beneath his day to legal issues. !e utility of this was gown by way of inspiration. demonstrated during the life of the last government with good relations between Bar
~ 4 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association Intemperate remarks
Magistrate DaviD Mossop
n 5 October 2012 the everything at the case and to regulation in the public OHigh Court published the ran it with the greatest interest and that the section reasons for its decision in the degree of legal sophistication has no operation where tobacco litigation, JT Interna- and resources that money the acquisition of property tional SA v Commonwealth of could buy. It was always without compensation is Australia [2012] HCA 43. Nei- going to be a di$cult task to no more than a necessary ther the result nor the reason- persuade a majority of the consequence or incident of a ing was unexpected. Court that the regulation of restriction on a commercial the packaging of cigarettes trading activity reasonably !e result was not unexpected amounted to an acquisition necessary to prevent or reduce because it had previously been by the Commonwealth of the harm caused by that trading announced. !e case had property of the companies. activity to members of the been argued on 17, 18 and 19 public or public health. April 2012. !e orders of the It was on that point that each court overruling the demurrer of the judges in the majority !e submission is a broad one and answering the questions found that the tobacco and would involve a signi#cant reserved adversely to the companies should fail: French expansion of the scope of tobacco companies had been CJ [44], Gummow J [155], laws outside s 51(xxxi). !ree announced by Chief Justice Hayne and Bell JJ [189], majority judges referred, in French on 15 August 2012. Crennan [306], Kiefel [357], moderate terms, to the fact [372]. that the issue was unnecessary In announcing the orders the to decide: see Gummow J Chief Justice said that “at least However it is not my intention [158], Crennan J [307] and a majority of the Court” was of here to summarise the Kiefel J at [344]. the opinion that the Tobacco decision or the reasons of the Plain Packaging Act 2011 (Cth) six di%erent judgments (#ve However, it is the manner in is not contrary to s 51(xxxi) majority, one dissenting) in which Heydon J dealt with of the Constitution. !e the case. Rather I wish to this argument which calls for terms of that announcement, focus on one issue relating comment. whilst indicating a result, gave to the style of judgment rise to obvious curiosity as writing which arises out of Heydon J found that to the extent of the majority the dissenting judgment of the restrictions on upholding the validity of Heydon J. packaging amounted to the the legislation or, indeed, Commonwealth taking control whether the decision might be As a result of the majority over the company’s intellectual unanimous. As it turned out conclusion on whether or not property and chattels. His the decision was 6-1 in favour there had been an acquisition, Honour found that that of the Commonwealth. it was not necessary for control was a measurable and the court to address the identi#able advantage relating !e reasoning of the Court broader and more ambitious to the ownership or use of was not really unexpected, arguments put forward by property and enlivened the particularly having regard the Commonwealth. !ose s 51(xxxi) guarantee: [226]. to the exchanges during the were that it was not necessary In his conclusion, Heydon course of oral argument in to treat every transfer of J referred to the arguments April 2012. property as an acquisition previously put by the to which s 51(xxxi) applies Commonwealth’s Solicitors- Notwithstanding that the where the transfer is incidental General in 1979 and 1993 as tobacco companies threw
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 5 ~ to the scope of s 51(xxxi) which he said were piece of writing. !e biting, dry humour repeated in the present case. He continued: of that piece has also been re&ected in the language of some of His Honour’s judgments. “240. !ese are just minor examples of a Best known to members of the bar in the ACT common characteristic of s 51(xxxi) litigation is His Honour’s judgment in Aon Risk Services – that the Commonwealth repeats arguments it (Australia) Ltd v Australian National University has advanced in earlier cases over many years, (2009) 239 CLR 175. His Honour’s sentence despite their failure, and o"en their repeated failure. “!e torpid languor of one hand washes the drowsy procrastination of the other” 241. A"er a “great” constitutional case, the tumult and the shouting dies. !e captains and is one which will long be remembered by the kings depart. Or at least the captains do; practitioners and judicial o$cers in the the Queen in Parliament remains forever. Territory. I am even told that T-shirts have been printed with the sentence emblazoned Solicitors-General go. New Solicitors- upon them. General come. !is world is transitory. But some things never change. !e &ame of the However the statement in the tobacco case goes Commonwealth’s hatred for that bene#cial beyond even the colourful use of language in constitutional guarantee, s 51(xxxi), may Aon. &icker, but it will not die. !at is why it is eternally important to ensure that that &ame In my view it is undesirable for a judge, does not start a destructive blaze.” particularly a judge of the High Court, to embark on such extravagant criticism of the Plainly enough, these are extremely strong party. It may be that the party continues and combative words directed to one of to advance arguments which have been the parties. !e language here is &orid and previously rejected. !at may be something goes beyond what is necessary in order to which a judicial o$cer wishes to make clear. reject an argument of one of the parties. It However, that of itself does not warrant the personalises the criticism of the argument kind of criticism seen in the tobacco case. put by the Commonwealth. It places the Further, even if it might be warranted where judge as a partisan player in combat with the the arguments are being put at a level below Commonwealth. that of the High Court, in the High Court, which can depart from its previous decisions, In my view the use of this kind of language in it is open to any party and particularly judgments of the High Court or, indeed, of any to an institutional player such as the court is unnecessary and undesirable. Whilst Commonwealth, to put forward arguments it provides entertaining reading and “quotable which, although going beyond the previous quotes” for both the legal profession and the authorities of the Court, are consistent with its consuming public, the use of such extravagant own long-term interests. Whether to do so and language tends to debase, and lessen the precisely how far to go is obviously a matter respect for, the judicial process. Such language of judgment but the sort of criticism engaged is more suited to the language of political in in this case clearly went beyond what was debate rather than that of judicial decision- necessary to determine the case or to reject making. the Commonwealth arguments. Indeed in his !ere is no doubt that Justice Heydon is a 2002 paper criticising “judicial activism”, one commanding writer with a mastery of language of Justice Heydon’s criticisms was the inclusion and metaphor rivalling that of George Orwell. in judgments of material not necessary to His paper, written in 2002 shortly before his decide the case. Whilst in his paper he was appointment to the High Court, “Judicial dealing with the consideration of legal issues activism and the death of the rule of law” not necessary to decide the case, the same (subsequently published in [2004] Otago Law approach can clearly be applied to unnecessary Review 493), is an excellent and entertaining criticism of the position taken by one of the
~ 6 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association parties in the litigation. It would appear to me suggesting that their decisions have not been to be inconsistent with His Honour’s extra- not reached in good faith is unnecessary and curial criticism of judicial activism to include tends to bring the institutions and, indeed, the in his decision the extravagant and unnecessary authors into disrepute. attack on one of the parties that he did in the tobacco case. It was not necessary to decide the It is a little more di$cult to resist the case and will be of no utility to future readers. temptation for forceful, combative and extravagant language when writing dissenting Whilst such language is unusual in the judgments. !at is particularly so when the Australian judgment writing culture it is not author is o"en a dissenter. !e motivation for unusual in the context of decisions of United writing dissenting judgments is to appeal either States courts, in particular, decisions of United to a perceived current constituency or to the States Supreme Court. !at Court, whose readers of the future, by whom it can be hoped workload is dominated by Bill of Rights cases, that true righteousness of the position adopted is burdened with a quasi-legislative function of will be recognised. However the position of determining the scope of the vaguely worded dissenters is not improved by the extravagance guarantees in the Constitution. Because of the of language. Just as overstatement is poor signi#cance of that part of the Court’s workload advocacy so too is it a poor judgment writing and the resulting partisan political nature of style. Perhaps the saving grace is that in cases the appointments to it, it is not surprising where there is a clear majority, it is likely that that the language that members of the Court few of the harassed practitioners attempting use in their opinions sometimes re&ects more to locate the ratio decidendi amongst the the language of political debate, marked as judgments of the majority will bother to pay such debate is by hyperbole, criticism, con&ict much attention to the reasoning or language of and extremity. One of the best proponents the dissenting judgments. of this style of judgment writing is Antonin Scalia whose judgment writing style has been Inevitably litigation involves the clash of described as “equal parts anger, con#dence, and signi#cant interests. !e rule of law suppresses pageantry” with “a taste for garish analogies and diverts the powerful forces that might and o(eat illusions”. !ey are said to read otherwise be at play into the judicial process “like they are about to catch #re for pure where disputes can be resolved by a rational outrage”. Justice Heydon’s style, as re&ected and fair process. O"en those underlying forces in his tobacco decision, certainly has some of are only barely suppressed by the legal rules these features. and cultural norms of the legal system. One of the functions of courts should be to reinforce Opinions of the justices of the United States the subordination of power to the rule of law by dealing with matters clinically and Supreme Court will also routinely address and dispassionately. !at is a leadership role which, criticise other opinions in the same case. Once if adopted by judicial o$cers, will a%ect the again, this has extended to the use of quite culture and approach of those appearing before strong language. In my view such an approach them and hence have a broader cultural e%ect once again tends to reduce the judicial process on the community. Overstated, extravagant to the level of partisan political debate. language and personalised attacks on parties or Fortunately, there has been little such intra- other judicial o$cers are inconsistent with such curial sniping in judgments of the High Court, an approach. !e adoption of such language although some is evident in Al-Kateb v Godwin and the making of such attacks will also infect (2004) 219 CLR 562 (judgments of McHugh J the culture of litigants and practitioners in the and Kirby J) and Wurridjal v Commonwealth court. Such an approach is inconsistent with (2009) 237 CLR 309 at [14] (French CJ), [214]- the subordination of power to the rational [215] (Kirby J). Personalising the argument, process compelled by the rule of law. attacking the motivation of other judges or
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 7 ~ a note on pleadIng and case management
Bryan Meagher sC, BlaCkBurn ChaMBers
n Canberra Data Centres them in Ting v Blanche [1993] FCA ordered. !ey show on their face Pty Ltd v Vibe Construc- 524; (1993) 118 ALR 543 (at 551 [4]): whether a reasonable cause of action tions (ACT) Pty Ltd (2010) 4 or defence is disclosed. !ey provide ACTLRI 114 Refshauge J made some Although in modern litigation a guide for the proper mode of trial observations about pleading that pleadings are o"en perceived as a and particularly for the trial of pre- have been applied a number of times technicality they retain their signi#- liminary issues of law or of fact. !ey in later cases. cance as de#ning the issues between demonstrate upon which party the the parties. (footnotes omitted). burden of proof lies, and who has the He said: [highlighting provided] right to open the case. !ey act as a At issue may be the way the identi#- measure for comparing the evidence “Importance of Pleadings cation of issues occurs, not whether of a party with the case which he has it occurs at all. 24. !e system of pleadings which pleaded. !ey determine the range underpins the common law form of 28. Whatever the result of this of admissible evidence which the litigation as generally practised in controversy, the system of formal parties should be prepared to adduce the higher courts in Australia is not pleadings is currently the way each at the trial. !ey delimit the relief immune from criticism, even from party is given notice, reasonably pre- which the court can award. !ey distinguished jurists. !us, Weinberg cisely, of the case that it has to meet. provide the basis for the defence of J (as his Honour then was), speaking Further, however, the pleadings do res judicata in subsequent proceed- extra-curially, said in a paper to the more, much more, than merely give ings by reference to the record in the National Judicial College of Aus- notice of the case of the other party. earlier proceedings. tralia on 25 October 2008: Secondly, and equally importantly, 30. I am mindful of the need to avoid they apprise the court of the issues A number of my colleagues see great arid technical disputes which do not so that it can manage the trial and all virtue in retaining formal pleadings. advance any litigation but only cause pre-trial interlocutory proceedings. I see none. delay and expense, contrary to the 29. Sir Jack Jacob, doyen of litigation obligation imposed by r 21 of the 25. Nevertheless, lest this comment proceduralists, set out the impor- Court Procedures Rules. See Aon suggest an anarchic approach to liti- tance of pleadings in this second Risk Services Australia Ltd v Aus- gation, his Honour continued: sense particularly in, “!e Present tralian National University [2009] HCA 27; (2009) 258 ALR 14. Never- I would much rather see us move to a Importance of Pleadings” (1960) theless, it is important to ensure that system of narrative pleadings, where- Current Legal Problems 171 (at 174- the legitimate objectives of pleadings by each side provides the other, and 5) as follows: are met by ensuring that a cause of the court, with a detailed outline of Pleadings do not only de#ne the is- action is (or causes of action are) ad- the nature of its case. !e test should sues between the parties for the #nal equately pleaded and that the parties be: does each party know with rea- decision of the court at the trial; they and the court can manage the litiga- sonable precision the case that it has manifest and exert their importance tion e$ciently and cost-e%ectively as to meet. throughout the whole process of a result of the de#nition of the issues 26. Indeed, his Honour in McKellar the litigation. !ey contain the par- thereby achieved. Intelligibility is & Anor v Container Terminal Man- ticulars or the allegations of which crucial to this. agement Services Ltd & Ors [1999] further and better particulars may be Rules and functions of pleadings and FCA 1101; (1999) 165 ALR 409 set requested or ordered, which help still particulars out (at 417-421) concisely and clearly further to narrow the issues or reveal more clearly what case each party the advantages of pleadings and the 31. In order to evaluate the pleading is making. !ey limit the ambit and interests they serve. of the Statement of Claim, it is worth range of the discovery of documents noting brie&y the rules of pleading. 27. As Hill J helpfully summarised and the interrogatories that may be !ey are generally set out in Pt 2.6
~ 8 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association of the Court Procedures Rules, espe- with su$cient clarity the case that necessary to be emphasised, namely cially rr 405 and 406. !e principal must be met: [Gould and Birbeck the di%erence between pleadings and rules may conveniently be summa- and Bacon v Mount Oxide Mines Ltd particulars and, especially, the role of rised as follows: (In Liq) per Isaacs and Rich JJ.] In each. I refer to the o"en cited obser- this way, pleadings serve to ensure vation of Scott J in Bruce v Odhams 1. !e pleading must be divided into the basic requirement of procedural Press Ltd where his Honour said (at consecutively numbered paragraphs, fairness that a party should have 711-3): each of which should desirably deal the opportunity of meeting the case with only one matter. against him or her and, incidentally, ... but it is beyond question that to de#ne the issues for decision. there is a radical distinction [be- 2. !e pleading should set out all the !e rule that, in general, relief is tween a statement of material-facts material facts on which the party re- con#ned to that available on the and particulars] and none the less so lies to establish the claim or defence pleadings secures a party’s right to that in cases near the dividing line sought to be advanced. this basic requirement of procedural there is a penumbra where the two may and o"en do overlap, just as be- 3. While facts not strictly material fairness. tween night and day there is a zone can be included where it is necessary 34. !ere have been many other of doubt which we call dusk ... or desirable to make the pleading statements in the cases which have comprehensible, these should be re#ned or nuanced this. !e threads !e cardinal provision in r 4 is that kept to a minimum as it is preferable have been helpfully drawn together the statement of claim must state the to include only material facts. in Multigroup Distribution Services material facts. !e word ‘material’ means necessary for the purpose of 4. Only facts should be pleaded, not Pty Limited v TNT Australia Pty formulating a complete cause of ac- the evidence by which the facts may Limited [1996] ATPR ¶ 41-522. Bur- tion; and if any one ‘material’ fact be proven or matters of law. chett J said (at 42,679): is omitted, the statement of claim 5. Subject to speci#c rules of plead- !e primary function (of a statement is bad; it is ‘demurrable’ in the old ing (such as those relating to condi- of claim) is to tell the defending phraseology, and in the new is liable tions precedent in r 512 and so on), party what the claim is that he has to to be ‘struck out’ ... the pleading should ensure that meet. !at is a matter of elementary !e function of ‘particulars’ under all facts are stated which, if not in- and natural justice; the claim cannot r 6 is quite di%erent. !ey are not to cluded, may take the other party by be answered until it is known. When be used in order to #ll materials gaps surprise. a su$cient defence has been #led to a su$cient statement of claim, a in a demurrable statement of claim 32. In these rules, “material” means further function will generally have – gaps which ought to have been “necessary for the purpose of for- been performed – that of de#ning #lled by appropriate statements of mulating a complete cause of action; the question or questions for deci- the various material facts which to- and if any one ‘material’ fact is omit- sion. !is de#nition is required, of gether constitute the plainti%’s cause ted, the statement of claim is bad”: course, from an early stage, or else of action. !e use of particulars is Bruce v Odhams Press Ltd [1936]1 discovery and other interlocutory intended to meet a further and quite KB 697 per Scott LJ (at 711-13]. procedures are likely to prove misdi- separate requirement of pleading, rected, wasteful and unproductive. imposed in fairness and justice to the 33. !ese rules are, of course, de- In order to achieve these fundamen- defendant. !eir function is to #ll in signed to achieve the function of tals, a statement of claim must set the picture of the plainti%’s cause of pleadings which has been helpfully out clearly, not just the bare claim action with information su$ciently and authoritatively set out in the that is made, but also ‘the material detailed to put the defendant on his statement of Mason and Gaudron facts on which it is based’, including guard as to the case he has to meet JJ in Banque Commerciale SA En facts that, if not speci#cally pleaded and to enable him to prepare for Liquidation v Akhil Holdings Pty might take the other party by sur- trial. Consequently in strictness par- Limited [1990] HCA 11; (1990) 169 prise. ticulars cannot cure a bad statement CLR 279 where (at 286) their Hon- of claim. But in practice it is o"en ours said: 35. Given the extensive reference di$cult to distinguish between a in this case to particulars, it is also ‘material fact’ and a ‘particular’ piece !e function of pleadings is to state worth repeating what is trite law but of information which it is reasonable
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 9 ~ to give the defendant in order to tell exchange of expert reports well in entertained.” him the case he has to meet; hence advance of trial and a direction that in the nature of things there is o"en those experts confer prior to trial; In that case he said of the arguments overlapping.” fourthly, the exchange of chronolo- ‘9 In this case, I have reviewed the gies; and #"hly the exchange of writ- statement of claim and the objec- !is adherence to traditional ideas ten submissions. of “proceduralists” does sadly lead tions to it and I have done so in the to arid disputes and underestimates 6 !ose processes leave very little op- case management context to which the signi#cant assistance gained portunity for surprise or ambush at I have referred. It is my view, that from modern case management trial and, it is my view, that pleadings many of the objections which have techniques when they are employed. today can be approached in that con- been taken are pedantic and pet- !e advent of a docket system is an text and therefore in a rather more tifogging in nature. In many cases, opportunity for a more practical and robust manner, than was historically elucidating and resolving the objec- creative approach to litigation. the case; con#dent in the knowl- tion would consume an amount of edge that other systems of pre-trial time and resources, which is entirely A westerly breath of fresh air was case management will exist and be disproportionate to the bene#t to be provided by Martin CJ in Barclay implemented to aid in de#ning the derived from that process in terms of Mowlem Construction Ltd v Damp- issues and apprising the parties to the identi#cation of the true issues ier Port Authority & Anor [2006] the proceedings of the case that has which have to be met in the case. WASC 281 to be met. 10 In many cases, consideration and !ere his Honour said: [highlighting 7 In my view, it follows that provided determination of each objection provided] a pleading ful#ls its basic functions would give rise to precisely the type of identifying the issues, disclosing of time and resource wasting foren- “4 It is, I think, important when ap- an arguable cause of action or de- sic exercise which the Commercial proaching an issue of that kind to fence, as the case may be, and appris- and Managed Cases List was created bring to mind the contemporary ing the parties of the case that has to to discourage. !at is not to say that purposes of pleadings. !e purposes be met, the Court ought properly be buried within those voluminous of pleadings are, I think, well known reluctant to allow the time and re- objections there might not be a criti- and include the de#nition of the is- sources of the parties and the limited cism that should be properly be seri- sues to be determined in the case resources of the Court to be spent ously entertained, but having looked and enabling assessment of whether extensively debating the application myself at the statement of claim, it is they give rise to an arguable cause of technical pleadings rules that my view that any lawyer looking at of action or defence as the case may evolved in and derive from a very that pleading, genuinely interested be, and apprising the other parties to di%erent case management environ- in knowing what issues are to be the proceedings of the case that they ment. tried and the case that has to be met, have to meet. would have no di$culty in ascertain- 8 Most pleadings in complex cases, ing those matters.” 5 In my view, the contemporary role and this is a complex case, can be of pleadings has to be viewed in the criticised from the perspective of And further” 16 Particulars should context of contemporary case man- technical pleading rules that evolved be provided, in an appropriate case, agement techniques and pre-trial in a very di%erent case management where they are necessary to meet the directions. In this Court, those pre- environment. In my view, the advent fundamental objectives to which I trial directions will almost invariably of contemporary case management have referred; that is to say, the true include; #rstly, a direction for the techniques and the pre-trial direc- enunciation of the issues that are to preparation of a trial bundle identi- tions, to which I have referred, be tried and the identi#cation of the fying the documents that are to be should result in the Court adopting case that has to be met. !e need to adduced in evidence in the course of an approach to pleading disputes to provide particulars must also be as- the trial; secondly, the exchange well the e%ect that only where the criti- sessed in the case management en- prior to trial of non-expert witness cisms of a pleading signi#cantly im- vironment to which I have referred; statements so that non-expert wit- pact upon the proper preparation of that is to say, an environment in nesses will customarily give their evi- the case and its presentation at trial which the parties can be assured that dence-in-chief only by the adoption should those criticisms be seriously the case will not go to trial before of that written statement; thirdly, the
~ 10 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association various orders have been made requiring the pre-trial will receive encouragement from statements of the disclosure of all the evidence that will be adduced at traditional role of pleadings. !e approach of Martin CJ trial.’ does not o%end the rules as they exist but redresses the balance so that the rules again are the servants not the It is, in my experience, the case that unless a robust master of the litigation. approach is taken, the party, who sees an advantage in doing so, will adopt such pettifogging tactics and
2012-13 Bar Council President Gregory Stretton SC V-President Graeme Blank Hon Secretary Richard Arthur Treasurer Geo%rey McCarthy
COUNCILLORS Robert Clynes Amanda Tonkin Kenneth Archer James Lawton Kristy Katavic
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 11 ~ Jon W hIte,
DireCtor of puBliC proseCutions, aCt
lawyer. John also spent a period contributions to both the legal and as Deputy Registrar of the ACT general community in the ACT. Supreme Court, adding to his She is particularly known for her knowledge and understanding work on the seminal 2005 report of the ACT legal system. He is a “Responding to sexual assault: have recently been pleased to very active member of the ACT legal the challenge of change” which I announce the appointments of community. precipitated important reforms in John Lundy as Deputy Director and sexual assault law in the Territory. Margaret Jones as Assistant Director Margaret has arts and law degrees of my o$ce. from the University of Sydney. She worked brie&y in the Australian John had a long career with the Public Service before joining the Australian Federal Police before Legal Aid Commission of NSW for changing direction and qualifying some eight years. She then moved as a lawyer. He completed law to the O$ce of the Director of studies at the University of Canberra Public Prosecutions. Ms Jones has while working with the AFP. A"er a substantial career as an advocate, qualifying he initially worked as both in her earlier work with the a solicitor in private practice and NSW Legal Aid Commission law tutor. He joined the O$ce of and in her work with the ODPP. the Director of Public Prosecutions She has undertaken a wide range in March 2000. In the years since of advocacy work (including then he has worked in most areas many sexual o%ence matters). in the o$ce. He is a respected trial Margaret has made substantial commIttee report
By Jack PaPPas, criminal law committee
!e ‘MOSSOP ORDER’ on proceedings bearing number SC 207 costs reserved until the judicial INDEMNITY COSTS - Yates v of 2012. review application has been Baker, CC6818 of 2011 Order Made #nalised. by Magistrate Mossop. For the moment all of the Magistrates are aware of Magistrate Further, each of the Magistrates Magistrate Mossop found (a"er Mossop’s judgment and are when ordering costs on the normal years of Magistrates ordering declining to award costs on better party/party basis have now taken indemnity costs in appropriate than a party/party basis. Any to doing so n the form of what circumstances) that the Magistrates barrister appearing and who has become known as a “Mossop Court has no juridiction to award believes their client might be Order” which can be found in His costs on an indemnity basis. entitles to costs on an indemnity Honour’s judgment but which is in basis or even a solicitor/own client the following terms: !e Learned Magistrate’s reasoning basis should have the question of appears &awed because he confused the basis upon which costs might be “!e Informant pay the defendant’s costs of the proceedings in an amount awarded with the scale to be applied agreed by the parties pursuant to Section 4(1)(b) of the Magistrates Court in the assessment or quanti#cation Regulation 2009 or, in default of the "ling of an agreement under Section 5 of of any such award. the Regulation within 14 days of the date of this order, in an amount assessed by the Registrat in accordance with the scale of costs as applied under Section In any event, the matter is 4(3)(b) of the Regulation.” now subject of judicial review
~ 12 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association 2012 BENCH AND BAR DINNER
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 13 ~ ~ 14 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association MEMBERS’ LUNCH with DAN MORI
On 24 September 2012 the Bar Association held its #rst Members’ Lunch. !ey are to provide an intellectual as well as social occasion on the Bar’s annual calendar. We hope they will continue.
!e #rst speaker was Dan (Mike) Mori, formerly a Major in the US Marine Corps, and best known for defending David Hicks during his detention in Guantanamo Bay.
Mori’s topic was “Targeted Killings”. In a thought- provoking hour long discussion, Mori invited the 70 assembled barristers and solicitors to re&ect on how decades ago governments would have attempted to capture terrorists and to place them on trial.
With a widened de#nition of what constitutes “hostile forces” and “warfare” the contemporary approach of the United States is to direct targeted killing of people identi#ed as terrorists.
!ere was a clear tension between the accepted view that enemy soldiers in warfare can be attacked at any time and the executive government identifying individuals for targeted killings. !is identi#cation occurs by non-curial means and can be based upon criteria which are highly questionable. Mori o%ered the frightening example of “baiting” terrorists. !is involved the process whereby a piece of equipment which could be used for terrorist activity was le" in a visible place. !e assumption was then made that anyone taking the equipment was a terrorist and liable to be attacked.
An interesting discussion ensued about when a person’s activities may warrant a response more typically associated with conventional combat. !is discussion was greatly enhanced by the contributions of Alyn Doig who, as members may know, has actually lived with the ever present threat of terrorist activity #rst hand.
!e Association hopes to state similar lunches in the future. Members who have suggestions as to who may be a well recognised and informative speaker for future lunches are invited to contact the President.
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 15 ~ case reVIeW Hayne and Kiefel gave joint that the assertion that there was reasons. !ey found –as had no genuine belief was a claim of Forrest and Fortescue Met- it seems the Courts below-that fraud referring to Derry v Peek als Group Pty Ltd. v ASIC the statement re&ected the way (1889) 14 App Cas 337 and Kra- the parties to the contract had kowski v Eurolynx (1995) 183 [2012] HCA 39 expressed their relationship and CLR 563 at 578. that this was accurately conveyed. SIC brought proceedings However the lack of reasonable against Fortescue and Mr !ey found that the target belief was one of negligence and Forrest its chairman and audience namely investors would it was wrong to confuse the two AChief Executive alleging that an have understood it that way and in this way. announcement made by them not as asserting what the words to the ASX was misleading or may mean objectively to a lawyer. An argument, that the lack of deceptive in relation to a #nancial belief allegation was made to product being shares contrary to !ey also found that the notion anticipate a defence that the s1041H of the Corporation Act. of being binding would not have statement was opinion, was been seen as imposing obligations not appropriate and it was ASIC also alleged a breach under Australian law as the not a pleader’s quibble, as the of the continuous disclosure statement also identi#ed CREC fundamental requirements requirement contained in s 674 as a Chinese Government owned for a fair trial of allegations of of the Act and a failure by Mr company and the agreement was contravention of law are that Forrest as a director under s180 silent as to choice of law. !e ASIC plead its case distinctly and of the Act. !e Statement of lack of honest belief allegation clearly. Claim was lengthy and complex. had failed at trial and was not re- agitated. Heydon J gave a separate !e pleading, they said gave rise It complained of 13 di%erent decision but came to the same to hundreds if not thousands communications that were said result and the appeal was allowed. of alternative and cumulative to o%end the Act but they all had combinations of allegations. common features and the Court !ere were some useful Whilst accepting that it was not was able to dispose of the appeal and interestingly expressed wrong to plead alternatives that by reference to a communication statements of principle did not “extend to planting a made by Fortescue to the ASX concerning the pleading of the forest of forensic contingencies on 23/8/2004 which read in part statement of claim, the di%erence and waiting until #nal address or “Fortescue … has entered into a between an allegation of fraud perhaps even an appeal hearing binding contract with China Rail- and negligence in the context of to map a path through it. way Engineering Corporation a misleading conduct case and (CREC) to build and #nance the essential questions that need to Gould and Birbeck and Bacon v railway component of the Pilbara be addressed in such a case. Mount Oxide Mines Ltd (in liqui- Iron Ore and Infrastructure Proj- dation) [(1916) 22 CLR 490 at 517 ect ….” –a case relied on by Refshauge Pleading J in Canberra Data Centres Pty !e case at trial was that this was Ltd v Vibe Constructions (ACT) dishonest in the sense that the !e allegation was that the Pty Ltd (2010) 4 ACTLR 114- appellants had no genuine or statement was misleading in was referred to with approval for reasonable basis for making the two respects namely that it the fundamental principle that disclosures. ASIC failed there and conveyed that the contract no man ought to be put to loss appealed. !e Full Federal Court obliged CREC to build and without having an opportunity of allowed the appeal as it focussed #nance the infrastructure and meeting the case against him. on the fact that objectively the secondly that Fortescue had a contracts were not binding in genuine and reasonable belief for !e vice in this case was the trial Australian law because there making that statement. It then was run as a dishonesty case but were still essential matters to be particularised how the statement the appeals as a case merely about agreed concerning subject matter was misleading. misleading conduct focussed on scheduling and price of the work what the statement would have to be done. One particular was that Fortescue meant to its intended audience did not have a genuine and/or not on the state of mind of the !e High Court allowed the reasonable basis for making the appellants. appeals. French CJ , Gummow, statement. !e Court explained
~ 16 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association Comment
Clearly the length and complexity of the pleading as well as the confusion of mixing fraud with innocent or negligent misrepresentation was undesirable and irritating but in fact there was no lack of a fair trial or hearing on appeal as the substance of the case was not complex. It is suggested that there is an argument, that pleadings and the particulars thereof to be of any use, should be limited to their bare essentials so that there could be a page limit and prolixity is deterred.
Misleading conduct act Bar assocIatIon Bench & Bar !e determinative issue was “what did the impugned statements convey to their intended chrIstmas lunch audience” !e Court held they conveyed a message about what the When: F rIday, 14 decemBer 2012 agreements said and it was clear that this was done accurately Where: unIVersIty house, anu even if the expression of the parties may have not had the legal quality they intended by their description. !e answer to act Bar cpd the question, the Court said, was resolved by focussing on who was mInI-conFerence 2013 the intended audience.
saturday, 16 march 2013 get all oF your cpd poInts In one hIt.
Further InFormatIon aBout the program WIll Be puBlIshed closer to the tIme
IF you are Interested In presentIng, please contact the ceo VIa
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 17 ~ “!e mob burned down the to the Prince houses of Justice Hyde, Justice of Wales. Again great Cox and the Lord Chief Justice courage was required. Paine Lord Mans#eld destroying his was being burnt in e$gy. furniture, paintings and his 1000 Erskine was approached and volumes of law books. told not to take the brief as the King was most displeased. He “!ey broke open and burned responded by saying ‘...but I have Newgate and Clerkenwell prisons been retained and I will take it by and sent notes to the Kings Bench God!’ and Fleet prisons stating when they would come and burn them “He has le" the bar with a down. proposition which all barristers ought to know. “At one stage over thirty #res burned in London and more Thomas Erskine (1750 - 1823) ‘I will forever, at all damage was done to London than hazards, assert the dignity, to Paris in the whole of the French independence, and integrity revolution. of the English Bar, without hen Philip Walker “Lord Gordon was charged with which impartial justice, the W introduced Dan Mori treason. at the Bar’s Members’ lunch in most valuable part of the September, he related the history “Great courage was required to English constitution, can of one of the Bar’s most capable take a brief for the defendant. It have no existence. From the and courageous members, !omas was unlikely to be popular in an moment that any advocate Erskine. It is worth reminding age of patronage and when the can be permitted to say that ourselves of Erskine’s example. government wished to extend the he will or will not stand Below is Walker’s introduction. reach of the o%ence of treason to “constructive treason”. It was between the Crown and “On 2 June 1778 Lord George also unlikely to be popular if not the subject arraigned in the Gordon, President of the indeed dangerous with many of court where he daily sits to Protestant Association lead a the public. Least of all was it was practise, from that moment group estimated at some 40,000 to not likely to be popular with the present a petition to the Houses of the liberties of England are trial judge who was - Lord Chief [ Parliament requesting the repeal Justice Mans#eld! at an end.’ of an Act which had granted certain tolerances to Roman “!omas Erskine, one of the most “!is lunch is the #rst of what, I Catholics. brilliant trial barristers in history, hope, will be a series of lunches was junior to Lloyd Kenyon, with speeches of intellectual “Spirits began to rise. Twice there later Lord Kenyon. Kenyon’s interest to the Bar. I also hope was an attempt to force the doors contribution was not notable. It that they will promote and re- of the Houses of Parliament open. was Erskine who made the closing enforce the principles for which As members arrived they were speech to which Lord Gordon’s members of the bar stand. accosted and were forced to wear acquittal has principally been “It is therefore appropriate that the Association’s blue cockade in attributed. their hats and shout “No Popery!” our #rst guest is Dan Mori for, !e Archbishop of York was “Erskine made something of a whatever you may think about attacked. !e mob broke the career out of defending people terrorists, security measures windows of Lord Chief Justice whom lesser men may have or Guantanamo Bay, few could Mans#eld’s carriage, they picked considered it unwise to defend. doubt that he went about the Duke of Northumberland’s defending his client with all his pocket for his watch and they “He started by successfully heart, nerve and sinew although it pulled the wheels of the Bishop of defending Capitan Baille on assuredly at great cost to himself Lincoln’s carriage – but this was a charge of criminal libel for and to his career. small beer. criticising the First Lord of the Admiralty about abuses at “He is therefore a leading, “!e mob then started to burn Greenwich Hospital. He defended contemporary heir to the down Roman Catholic churches the anti-monarchist pro-French principles of courage of which and houses. !ose who gave Revolutionary, !omas Paine on Erskine was an example and to evidence against the rioters a charge of seditious libel at the which we all ought to aspire.” had their houses burned. time when he, Erskine, held the paid position of Attorney General
~ 18 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association noor Blumer presIdent, act laW socIety
road transPort (third-Party insurance) amendment act 2012
Big thanks to the ACT Bar Association for the very large number of emails and phone calls, strong commitment of talent, time and money probably more than for any other issue over the in the battle against the proposed introduction term of this Assembly. Many of these have been of serious thresholds and limitations on from people who have been injured, arguing damages for those injured in motor vehicle vehemently against the changes. Not a single accidents. person who has been involved in an accident has supported the changes. I think that this is an Yes, the bill was passed, but not without a important point.’ swag of amendments by the Liberals and the Greens which made some adjustments to assist She then went on to say in downward pressure on premiums without robbing Canberra citizens of their entitlements “I certainly understand the desire for premiums to general damages or increasing the discount to be lower; rego is a signi"cant cost to a rate. household budget. But as I said, I am not convinced that those who are advocating for a !ey say you should never watch either lower premium would maintain their position if sausages or laws being made and now I know they were the ones in an accident who were then what they mean. If sausages are a popular dogs’ given the ability to go back in time and pay just breakfast then that certainly describes the that little bit more.” last session of the legislative assembly on 24 August 2012. I sat, confused, as amendments !is issue is not going to go away and it is were passed to amendments and at times, the important that we remain vigilant. plot was lost and various bits had to be taken o% and stuck back on the right way up. I was Short summary of amendments very impressed overall with the ability of our representatives and their advisors to manage t Amendments to commence 1 January 2013. the process, which I had great di$culty following, despite being a ‘lawyer’. t Early treatment period to claim now 30 working days (not 28 days) from date !e end result was pretty good, but not without of accident and time doesn’t run while some minor errors that I am told will be under a legal disability. (note that there is remedied when the assembly resumes a"er the a dra"ing error which will be remedied election. before the legislation comes into force; Of signi#cant value was the response from t !e certi#cate of readiness prior to a former motor accident victims. !eir compulsory conference need only certify impressive input was noted by leader of the that ‘the party is in all respects ready for the Greens, Meredith Hunter who said in the compulsory conference’ but no longer has Legislative Assembly: to certify that the party is ready for trial;
‘!is has been a particularly controversial t Calculation of costs payable on acceptance proposal. Like all members, I have had a of an mandatory #nal o%er (‘MFO’) no
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 19 ~ longer includes the non-economic loss expectation of life and dis#gurement; (NEL) component. !is is to overcome the decision in Haureliuk v Furler [2012] t New s 156C allows the CTP regulator to ACTCA 11 (29 February 2012); make guidelines setting out information to assist the courts in deciding the appropriate t Children and commonwealth concession level of damages for non-economic loss card holders can get costs and which a court must have regard to when disbursements up to $5000 if they accept awarding damages but is not bound by the an MFO or are awarded $30,000.00 or less, guidelines rather than nil; !e public’s attitude to lower quality CTP was t When damages awarded (not including comprehensively tested before the October NEL) of more than $50,000 suggests election. In the light of the response, the statutory enshrinement of ‘Calderbank’ former Government did not make an issue of style principles for costs if beat or fail to it. beat MFO. A party ‘may apply to the Court’ for such orders, but wording does not seem !e election did show that there are things that to prescribe that the Court is compelled to don’t work which must be #xed rather than grant the application; pointlessly tamperring with things that do! t Allows the CTP regulator to make !e legal profession will never, ever give up the guidelines setting out information to assist #ght to protect our clients rights to proper CTP courts in deciding appropriate level of bene#ts. damages, which the court must’ have regard to but is not bound by; t !e operation of the Act must be reviewed every 3 years from 1 January 2013; t New s 27(2) and (3) if incorrect premium paid, does not invalidate the policy, and shortfall can be recovered as a debt; t New ss 37 and 38 changes de#nition of CTP premium and introduces CTP premium guidelines; t S 123 amended to rede#ne rehabilitation to both restore physical and mental functions AND to optimise quality of life. Previously, it was OR; t S 133(2)(b) this section already allows a respondent to apply for mediation to resolve rehabilitation questions between the claimant and the respondent. !e change is that the application must give details of any attempts made by the RESPONDENT to resolve the dispute, previously, it was attempts made by the CLAIMANT; t New s 156B introduces a de#nition of non-economic loss to include, pain and su%ering, loss of amenities of life, loss of
~ 20 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association landmark research uncoVers a hIdden epIdemIc oF legal proBlems
andrew crockett, ceo, legal aid - act
The Legal Australia-Wide Survey: Legal Need in Australia V"#$%&'( Mr Cranitch SC: Your Honour, this is a matter which is a claim for damages which arises out of an accident which occured on 29 August 2008. Now, your Honour will hear that the Plaintiff was born in September 1975 in New Zealand, and fortunately for him, he emigrated from that country and came to this great nation in --- Mr Pilkinton SC: I take offence at that your Honour!
Mr Cranitch SC: I thought my learned friend might - in 1988.
The Master: You would remember what Sir Robert Muldoon said about what happens in thise circumstances? Mr Pilkinton SC: I do indeed, your Honour. I was in New Zealand when he said that. Commentary: What Sir Robert Muldoon said was that New Zealand immigration to Australia raised Strategic Plan for 2013-2017 the IQ level of both Countries!!
The Australian Capital Territory Bar Association Bar Bulletin November 2012 ~ 21 ~ the Byers lectures 2000-2012 nye perram & rachel pepper (eds) In 2000, the NSW Bar Association established an annual lecture in honour of Sir Maurice Byers Kt CBE QC,
Commonwealth Solicitor-General 1973-1983; this volume contains the #rst 12 lectures, 2000-2012. Each lecture is introduced by Justices Nye Perram and Rachel Pepper who discuss the background to the lecture and developments that have taken place since it was delivered. In addition, there is a short collection of thoughts by Sir Maurice himself together with some further pieces.
!e Byers Lectures
Murray Gleeson AC QC - Foreword
Sir Gerard Brennan AC KBE QC - Strengths and perils: !e Bar at the turn of the century
MH McHugh AC QC - Does Chapter III of the Constitution protect substantive as well as procedural rights?
Professor Leslie Zines AO - Legalism, realism and judicial rhetoric in constitutional law
Keith Mason AC - What is wrong with top-down legal reasoning?
W M C Gummow AC - Statutes
D F Jackson AM QC - !e implications of the Constitution
J D Heydon AC - !eories of constitutional interpretation: a taxonomy
Dame Sian Elias GNZM PC - Judicial review today
Stephen Gageler SC - Beyond the text: A vision of the structure and function of the Constitution
David Bennett AC QC - Rules that ought not to be applied: !e ultimate iconoclasm
J J Spigelman AC -Truth and the Law
Lord Phillips of Worth Matravers KG PC - Dictator or Dialogue? !e relationship between the Supreme
Court of the United Kingdom and the European Court of Justice
Individual pieces
Sir Anthony Mason AC KBE QC - Eulogy for Sir Maurice
T E F Hughes AO QC - Obituary for Sir Maurice
Sir Maurice Byers Kt CBE QC - An advocate’s view of the judiciary
Sir Maurice Byers Kt CBE QC - Speech on the occasion of his receiving a knighthood
For more details www.federationpress.com.au
~ 22 ~ Bar Bulletin November 2012 The Australian Capital Territory Bar Association